Choosing a Guardian for Your Children.
Choosing a guardian for your children can be the most difficult part of estate planning for parents with young families. The thought of your children growing up without you is heart-wrenching and choosing someone to care for and raise them in your absence is not easy.
The Other Parent Is Always the First Choice.
If the other parent is still living and not otherwise unfit, that parent will almost always remain the natural guardian of the children and no formal guardian is needed. This is often true even if the parents were divorced and the deceased parent had primary custody. The tough part comes when both parents are deceased.
When Both Parents Are Deceased or Unavailable, Choosing a Guardian is Top Priority.
When both parents are deceased or unavailable, a guardian will be necessary. A California court will first consider the person or persons nominated by a parent. Ideally, both parents will nominate the same person(s). If the parents were divorced (or never married) and they nominate different people, the court will consider both nominations but will probably give a bit more weight to the nomination of the parent that had primary custody. If a person nominated by a parent is otherwise qualified (not a felon, for instance) and agrees to serve, then the court usually appoints that person even if there are others wanting the job. This is because the law gives deference to the choice made by the parents.
But that does not mean that the judge has to appoint the parents’ choice. There are situations where another person may be chosen. For instance, a much older child having a preference for another caregiver for a legitimate reason, such as to remain in the same school for the last years of high school, may be given more consideration. Other changed circumstances might also be considered. Generally, however, the parent nomination is usually the first choice.
Choosing a Guardian of the Person and of the Estate.
There are many considerations for you to think about when selecting a guardian. The first decision is whether you want the same person(s) to be in charge of the child’s care and the child’s money, or whether you want to divide those jobs. Some people are very good caregivers and day to day “parents,” but are poor money managers. Others may be great with finances, but not so great with kids. Consider splitting the job. California allows for both a “guardian of the person” and a “guardian of the estate.”
♦ Guardian of the Estate.
The guardian of the estate is in charge of the child’s money, including any inheritance that was not left in trust and not assigned to the care of someone else under your Will. The guardian of the estate is authorized to spend money for the child’s support and education, to make decisions about allowance and major purchases (such as a car), and is charged with the proper investment of the child’s money and must give periodic accountings to the child and the court.
♦ Guardian of the Person.
The guardian of the person is the one in charge of the child’s day to day care. This is the person who decides where your child will live and go to school, signs permission slips, consents to medical care, raises your child, gives advice, listens to their problems, etc.
Parents often choose the same person to act as both guardian of the estate and guardian of the person, but it is not uncommon for that job to be split between two people. The important things are to choose people who can get along with each other and to choose the best person for each of those jobs.
Think Twice Before Naming a Married Couple as Guardians.
Think long and hard before you name a married couple as joint guardians. Naming joint guardians is fine as long as you consider divorce or death and remarriage. Even if your sister and her husband seem like great parents, would you still want your child living with your brother-in-law if they got divorced, or if your sister died and your brother-in-law remarried? For some parents, the answer is “yes.” But if you have any reservations about that, it would be better to just name your sister.
Remember to Ask Permission to Name Someone as Guardian.
You should also be sure to ASK the person(s) you’re selecting as guardians whether they would be comfortable taking on that job. And it has to be “okay” for them to say no. This is a big job, with many considerations.
Even if you’re only naming your sibling or friend, but not the spouse, you should still ask both of them for permission. Both will be in the child’s life as long as they’re married. Naming the sibling alone is a legal technicality.
Be Sure to Update Your Selection as Your Children Age.
An extremely important thing is to remember to UPDATE your selection as time passes and circumstances change. The person you thought good for the job when your child was a baby may not be the best person when your child is a teenager.
A child’s needs and abilities change over time, so do the needs and circumstances of the proposed guardians. There is some flexibility, too. The guardian of the person is usually the person with whom your child will actually live, but that is not always required. The guardian of the person decides where the child lives — that guardian could authorize the child’s living with a friend or another relative if that seemed to be in the child’s best interests. So if your brother is the ideal guardian, but he now lives in another state and your son is in his last year of high school, don’t despair. Your brother would not necessarily have to uproot your son if a satisfactory living arrangement could be made.
Once you’ve selected a guardian, be sure that person knows of any special situations affecting your child, knows your parenting philosophy, and knows your wishes in regard to education, continued contact with other family, special activities, and the like.